10.5 Dispute settlement
163
10.5.3.4 Bilateral Water Treaties
Most European bilateral treaties on general water cooperation or on individual watercourses and/or projects provide for some kind of dispute settlement mechanism. Of
the treaties examined by this study the least elaborate is the 2010 Finnish-Swedish
agreement that only calls for the settlement of disputes by way of negotiations
through diplomatic channels (Art. 30.). The 1987 Austrian-German Danube cooperation treaty first calls on parties to settle their differences through negotiations, to be
followed by arbitration should negotiations fail to deliver a result (Art. 9.). A similar
solution is employed by the Hungarian-Ukrainian frontier water treaty that defines
the mandatory jurisdiction of the arbitral tribunal to be set up under the UNECE
Water Convention (Art. 15.). The Albufeira Convention refers disputes of predominantly technical nature to an inquiry commission before the matter is submitted to
arbitration (Art. 17.). Specific or single issue water treaties tend to specify the competence of general bilateral dispute settlement mechanisms to adjudicate water-related
matters. Examples include the 1958 French-Spanish agreement concerning the Lake
Lanoux (Art. 7.) or the 1980 Belgian-Luxembourgish convention on the construction
on waste water treatment plants along the river Sûre
52 (Art. 17.).
10.5.4 Evaluation
As in the case of all previous subjects, the legal framework for the resolution of
transboundary water disputes has multiple layers within the European Union. What
distinguishes this particular topic from the preceding issues is, however, the gross
incoherence among the overlapping regulatory levels. In the case of major water management questions such as water quantity, water quality or variability management
the EU, the UNECE, basin and bilateral arrangements follow more or less similar
directions. The various water law instruments thus do not contradict one another.
Rather, in most cases they are positively complementary in character, to some extent
filling critical regulatory gaps.
The resolution of transboundary water disputes—especially when it comes to
binding (judicial) mechanisms—is, however, seen in the EU as a horizontal constitutional question rather than a sublet of water governance. Consequently, the supremacy
of primary EU law must be upheld at any price, even if this imperative gives rise to
potentially gross repercussions on the functioning of the broader international legal
order.
The fact that European primary law overrides the provisions of the UNECE Water
Convention, basin and bilateral treaties automatically deprives member states of
important and relevant dispute settlement mechanisms under public international law.
Yet, what EU law offers in the stead is the inadequate infringement procedure or the
52 Convention between the Kingdom of Belgium and the Grand Duchy of Luxembourg relating to
the Waters of the Sûre, Brussels, 17 March 1980.
163
10.5.3.4 Bilateral Water Treaties
Most European bilateral treaties on general water cooperation or on individual watercourses and/or projects provide for some kind of dispute settlement mechanism. Of
the treaties examined by this study the least elaborate is the 2010 Finnish-Swedish
agreement that only calls for the settlement of disputes by way of negotiations
through diplomatic channels (Art. 30.). The 1987 Austrian-German Danube cooperation treaty first calls on parties to settle their differences through negotiations, to be
followed by arbitration should negotiations fail to deliver a result (Art. 9.). A similar
solution is employed by the Hungarian-Ukrainian frontier water treaty that defines
the mandatory jurisdiction of the arbitral tribunal to be set up under the UNECE
Water Convention (Art. 15.). The Albufeira Convention refers disputes of predominantly technical nature to an inquiry commission before the matter is submitted to
arbitration (Art. 17.). Specific or single issue water treaties tend to specify the competence of general bilateral dispute settlement mechanisms to adjudicate water-related
matters. Examples include the 1958 French-Spanish agreement concerning the Lake
Lanoux (Art. 7.) or the 1980 Belgian-Luxembourgish convention on the construction
on waste water treatment plants along the river Sûre
52 (Art. 17.).
10.5.4 Evaluation
As in the case of all previous subjects, the legal framework for the resolution of
transboundary water disputes has multiple layers within the European Union. What
distinguishes this particular topic from the preceding issues is, however, the gross
incoherence among the overlapping regulatory levels. In the case of major water management questions such as water quantity, water quality or variability management
the EU, the UNECE, basin and bilateral arrangements follow more or less similar
directions. The various water law instruments thus do not contradict one another.
Rather, in most cases they are positively complementary in character, to some extent
filling critical regulatory gaps.
The resolution of transboundary water disputes—especially when it comes to
binding (judicial) mechanisms—is, however, seen in the EU as a horizontal constitutional question rather than a sublet of water governance. Consequently, the supremacy
of primary EU law must be upheld at any price, even if this imperative gives rise to
potentially gross repercussions on the functioning of the broader international legal
order.
The fact that European primary law overrides the provisions of the UNECE Water
Convention, basin and bilateral treaties automatically deprives member states of
important and relevant dispute settlement mechanisms under public international law.
Yet, what EU law offers in the stead is the inadequate infringement procedure or the
52 Convention between the Kingdom of Belgium and the Grand Duchy of Luxembourg relating to
the Waters of the Sûre, Brussels, 17 March 1980.